employer not up front with information

[afrum cinefactu]

What is the name of your state? California
I wanted to change jobs and found a suitable new position. I interviewed and was hired through a temp agency. I turned in my 2 week notice to my current employer and only after that the temp agency told me that a drugtest would be required. There was no mention of this in the ad or in the hiring process. I owned up to the recruiter to having smoked pot infrequently (who said the issue would remain confidential) and he told me to research different products and find a way to pass. They even went so far as to ask their friends for information on how to pass a drugtest and called me up to tell me his findings. I was told by him that I could choose a facility to be tested at. I stopped smoking pot and passed the drugtest, and now they will not accept the results. Stating that I have to use their facility. I am to take another test after being on assignment for 3 weeks. I should pass, but what if I fail? I don't bother with jobs that require testing as a lifestyle choice, now I just stress out and sleep all the time. I am left with a few questions that my legal research is unable to find the answers to.

1. how long can this retesting go on? I know pre employment screening is not regulated heavily, but I was under the impression that once you were hired the employer required reasonable cause.

2. If a drugtest is required for a position, is it mandatory to inform the potential employee prior to being hired?

3. If I am uncomfortable with the mannerisms of the testing personnel, do I have the right to request another facility? The tech was very invasive and creepy, and at one point after a shy bladder situation he told me the only other way for me to test was for me to get naked, I felt violated and dirty.

4. If the companies drug policy does not specify that refusal to test is grounds for termination, can I legally refuse the test without termination?

This whole situation has been filled with incompetence on the part of my employment service, and now I may well find myself out of a job because the recruiter (who is actually just a salesman trying to help out) failed to have his ducks in a line This has been so interminably stressful on me and the soon to be due wife. At this point I don't know where else to turn, but to legal advice.
Thanks in advance for any help you can provide,
Afrum

 

[Beth3]

1. how long can this retesting go on? I know pre employment screening is not regulated heavily, but I was under the impression that once you were hired the employer required reasonable cause. As long as the employer wishes. An employer does not have to have "cause" to drug test employees.

2. If a drugtest is required for a position, is it mandatory to inform the potential employee prior to being hired? No.

3. If I am uncomfortable with the mannerisms of the testing personnel, do I have the right to request another facility? You may request another facility but the employer doesn't have to comply. If I experienced what you did however (get naked for a routine pre-employment drug screen?!?), I'd certainly complain to the senior administrator of the clinic and inform the employer.

4. If the companies drug policy does not specify that refusal to test is grounds for termination, can I legally refuse the test without termination? No.

There are two things you should be aware of: (1) this "recruiter" you worked with is extremely unethical (it is outrageous that he advised you how to falsify the test results), and (2) as long as you choose to use illegal drugs, you are going to have major problems obtaining employment with a decent employer and thus providing for your family.

 

[cbg]

"I was under the impression that once you were hired the employer required reasonable cause."

State law regulates drug testing. Nothing in your state law requires an employer to have reasonable cause before drug testing.

 

[HomeGuru]

The employer does not even have to have reasonable cause to fire you.

 

[I AM ALWAYS LIABLE]

My response:

Suspicionless drug testing:
Requiring an employee to submit to a drug test without regard to whether the employer has any basis for suspecting the employee of abusing drugs or alcohol is permissible only under limited circumstances:

Applicants for new jobs:
Suspicionless drug testing is valid as part of a "preplacement medical examination" applied to all new job applicants. [Loder v. City of Glendale (1997) 14 Cal.4th 846, 898-899, 59 Cal.Rptr.2d 696, 729]

Applicants for promotions:
Suspicionless drug testing is impermissible, however, when applied to all current employees who apply for and are offered promotions, without regard to the nature of the position sought. [Loder v. City of Glendale, supra, 14 Cal.4th at 899-900, 59 Cal.Rptr.2d at 730-731]

Compare--federal case law:
Prepromotional, suspicionless drug testing of teachers has been upheld by a federal court on the ground that the public interest in testing teachers outweighs any privacy interest. [Knox Co. Ed. Ass'n v. Knox County Board of Ed. (6th Cir. 1998) 158 F.3d 361, 384]

Notice of random drug testing program:
Although advance notice of random drug testing does not automatically defeat an existing employee's privacy claims, it does "minimize" the program's intrusion on privacy interests. [Smith v. Fresno Irrig. Dist., supra, 72 Cal.App.4th at 161, 84 Cal.Rptr.2d at 785]

Safety or security sensitive interests:
An employee's privacy interests may be outweighed by the employer's safety-related reasons for random drug testing its workers. This includes the employer's interest in reducing the risk of injury to coworkers. [Smith v. Fresno Irrig. Dist., supra, 72 Cal.App.4th at 162, 84 Cal.Rptr.2d at 786--construction and maintenance worker's duties were safety-sensitive because he operated power tools and heavy equipment in close proximity to coworkers and worked as member of team performing dangerous work]

The employer's safety concerns may stem from the hazardous environment in which the employee works or from hazards inherent in the work itself. [Smith v. Fresno Irrig. Dist., supra, 72 Cal.App.4th at 165, 84 Cal.Rptr.2d at 788]

Testing during off-duty hours:
Drug testing of employees during off-duty hours is permissible only if "contiguous" to their on-duty time, and if follow-up drug tests are necessary to comply with federal regulations (above). [See Edgerton v. State Personnel Board, supra, 83 Cal.App.4th at 1361, 100 Cal.Rptr.2d at 499]

Drug testing of railroad personnel involved in train accidents. [Skinner v. Railway Labor Executives' Ass'n, supra, 489 U.S. at 617, 109 S.Ct. at 1413; see Byrne v. Massachusetts Bay Transp. Auth. (D MA 2002) 196 F.Supp.2d 77, 81--direct observation of employee producing urine sample allowed where employee suspected of tampering with prior sample]

Random drug testing of federal customs officers who carry arms or are involved in drug interdiction. [National Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665, 109 S.Ct. 1384, 1390]

Random drug testing of student athletes based on public school's responsibility as guardian and tutor of children entrusted to its care, and justified by the students' decreased expectation of individual privacy at school, the relative unobtrusiveness of the search, and the severity of the need met by the search. [Vernonia School District 47J v. Acton, supra, 515 U.S. at 664, 115 S.Ct. at 2396--"We caution against the assumption that suspicion-less drug testing will readily pass constitutional muster in other contexts"]

No bar to otherwise lawful test or examination:
This Act does not regulate the circumstances under which an employer may require job applicants or employees to submit to a medical examination or drug test. Therefore, so long as the medical examination or drug testing is otherwise lawful, this Act does not prevent an employer from disqualifying an applicant or discharging an employee who refuses to authorize disclosure to the employer of the ultimate results of a medical examination or test. [Loder v. City of Glendale (1997) 14 Cal.4th 846, 862, 59 Cal.Rptr.2d 696, 705]

Drug testing:
The ADA is neutral toward drug testing. [42 USCA § 12114(d)(2); 29 CFR § 1630.16(c) & Pt. 1630, App. § 1630.16(c)]

Neither the ADA nor its implementing regulations encourages, prohibits or authorizes conducting drug tests of applicants or employees or making employment decisions based on the results of those tests. [42 USCA § 12114(d); 29 CFR § 1630.16(c) & Pt. 1630, App. § 1630.16(c)]

Not a "medical examination":
Drug testing of applicants and employees is not a "medical examination" within the meaning of the ADA. [42 USCA § 12114(d)(1); 29 CFR § 1630.16(c) & Pt. 1630, App. § 1630.16(c)]

Thus, the results of these tests may be the basis for making an employment decision, including disciplinary action, about an applicant or employee. [42 USCA § 12114(d)(2); 29 CFR § 1630.16(c) & Pt. 1630, App. § 1630.16(c)]

Conduct authorized by ADA:
The employer may show that the alleged discriminatory act is one the ADA specifically permits. For example:
-- authorized medical inquiries of applicants or employees;
-- regulation of alcohol or drugs in the workplace;
-- drug testing;
-- regulation of smoking; and
-- provision and administration of employee benefit plans. [29 Code of Federal Regulations § 1630.15(f), citing 29 CFR §§ 1630.14, 1630.16]


IAAL

 

[afrum cinefactu]

thank you all for your honesty

[CALIFORNIA]
Hi all,
Thank you for your advice, and for remaining on topic.
For the finale if any of you are interested:
I found that the company that I would be working for has homeland defense contracts and numerous defense contracts with other countries. If I were to fail a piss test after working there, and were it to be made known. Then they could very well lose billions of dollars in contracts. In light of this, and the fact I genuinely care about the company and their mission; I turned down the job today, but not before I told the company what the recruiter at the temp agency said and about the fact that I had smoked in the past. They thanked me for my honesty and gave me the option to stay for a week and collect a paycheck or to walk...I walked with the tidbits of my dignity. This information was supposed to be held in confidence, but he called my recruiter and told him anyways. Who in turn called me and yelled at me for about 10 minutes calling me a liar and threatening me with my permanent record. I was rather broken up over this, not for being denied employment, but for perhaps causing the recruiter for losing his job (which I have no proof of, just a possibility i guess). Sorry for the long response, i just wanted to fill you all in considering you all spent personal time assisting me in finding the facts. I know my lifestyle isnt in accord with the needs of society and again I thank you for staying on topic in your assistance. Especially thank you beth, i thought ethics were in question here, and what you said eased my seemingly interminable anguish. Good work people, too bad you dont take donations...lol.
Take care all.
Afrum Cinefactus

 

[Beth3]

You did the right thing informing the employer about the recruiter's behavior. As I said, what he did was extremely unethical and frankly, he should be barred from that profession. I expect the reason the employer contacted the recruiter was not to inform him what you said but rather to tell the recruiter they wouldn't be doing business with him any longer and why. Too bad he blased you but he is just angry that the jig is up for him.

If the employer is a government contractor, they do indeed have rigorous federal requirements to meet regarding drug testing and maintaining a drug-free work environment.

Good luck to you and I encourage you to cease the recreational drug use. You'll go much farther career-wise if you do so. The best employers all drug test.